ILLINOIS POLLUTION CONTROL BOARD
April 5, 2005
WASTE MANAGEMENT OF ILLINOIS,
INC.,
Petitioner,
v.
COUNTY BOARD OF KANKAKEE
COUNTY,
Respondent.
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PCB 04-186
(Pollution Control Facility
Siting Appeal)
HEARING OFFICER ORDER
On March 15, 2005, petitioner Waste Management of Illinois, Inc. (WMII) filed a motion
to compel answers to questions it had posed in discovery depositions taken between June 22,
2004 and November 12, 2004. These questions related to reasons why certain members of the
respondent County Board of Kankakee (County Board) had voted against the siting application
at issue here. On March 30, 2005, the respondent filed its response in opposition.
For the reasons set forth below, the petitioner’s motion is denied. Consistent with prior
Board precedent, the integrity of the decision making process of the Kankakee County Board
requires that the mental processes of the decision-makers be safeguarded here, where petitioner
WMII has made no strong showing of bad faith or improper behavior to justify any inquiry into
the decision making process.
See, e.g.,
Rochelle Waste Disposal, L.L.C. v. City Council of the
City of Rochelle, Illinois, PCB 03-218 (April 15, 2004).
Procedural Status of the Case
This case involves WMII’s second application to the Kankakee County Board for
approval to expand its existing 179-acre landfill in unincorporated Kankakee County. The
expansion would increase the Kankakee Landfill site to 664 acres including a 302-acre disposal
site. The expansion includes all of the existing 179 acres. To understand the procedural posture
of this case, the circumstances of both applications is briefly described below.
WMII’s 2002 Siting Application/County Board’s 2003 Denial
On August 16, 2002, WMII filed its first siting application (2002 application) with the
Kankakee County Board. The County Board held 11 days of hearing and granted siting approval
on January 31, 2003. The City of Kankakee (City), Merlin Karlock (Karlock), Michael Watson
(Watson), and Keith Runyon (Runyon) all filed separate petitions under Section 40.1(b) of the
Act, asking the Board to review the County’s decision. The petitions argued that the County
lacked jurisdiction to consider the application, that the proceedings were fundamentally unfair,
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and that the County decision was against the manifest weight of the evidence.
The Board vacated the County Board's decision on jurisdictional grounds, and so found
no need to reach any of the other issues raised. The Board found the County lacked jurisdiction
because WMII failed to notify a nearby landowner of its siting application in accordance with
Section 39.2(b) of the Act.
See
County of Kankakee and Edward D. Smith, States Attorney of
Kankakee County v. The City of Kankakee, Illinois, City Council, Town And Country Utilities,
Inc. and Kankakee Regional Landfill, L.L.C. (PCB 03-31), Byron Sandberg v. The City of
Kankakee, Illinois, City Council, Town and Country Utilities, Inc., and Kankakee Regional
Landfill, L.L.C. (PCB 03-33), Waste Management of Illinois v. The City of Kankakee, Illinois,
Town and Country Utilities, Inc. and Kankakee Regional Landfill, L.L.C. (PCB 03-35) (Cons.)
(Jan. 9, 2003).
The Second District Appellate Court has recently affirmed the Board in a published
decision. Waste Management of Illinois, Inc. v. Illinois Pollution Control Board, County of
Kankakee, County Board of Kankakee, City of Kankakee, Merlin Karlock, Keith Runyon, and
Michael Watson, No. 3-03-0924 (February 4, 2005). WMII has filed a petition for leave to
appeal in the Supreme Court.
WMII’s 2003 Siting Application/County Board’s 2004 Denial
On April 22, 2004, the petitioner filed a petition for review of the County Board’s March
17, 2004 denial of siting approval to WMII’s September 26, 2003 application (2003 application).
WMI asserts that the County Board’s proceedings were fundamentally unfair, and that the
County Board’s findings that criteria 1, 3, and 6 of Section 39.2 of the Environmental Protection
Act (Act) had not been met were against the manifest weight of the evidence.
WMII began deposing members of the Kankakee County Board in this case on June 22,
2004 and concluded in January 2005. These County Board members refused to answer questions
about their reasons for disapproving the 2003 application, even though they had approved the
2002 application.
On March 2, 2005, hearing in this case was set to begin April 6, 2005. On March 15,
2005, WMII filed its motion to compel answers to the unanswered deposition questions. The
decision deadline in this case is currently June 16, 2005, pursuant to WMII’s waiver received
February 16, 2005 .
Petitioner WMII’s Motion To Compel
The petitioner’s motion to compel seeks an order allowing discovery as to the reasons
certain members of the County Board denied the petitioner’s sitting application they had
previously approved.
See
County of Kankakee and Edward D. Smith, States Attorney of
Kankakee County v. The City of Kankakee, Illinois, City Council, Town And Country Utilities,
Inc. and Kankakee Regional Landfill, L.L.C. (PCB 03-31), Byron Sandberg v. The City of
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Kankakee, Illinois, City Council, Town and Country Utilities, Inc., and Kankakee Regional
Landfill, L.L.C. (PCB 03-33), Waste Management of Illinois v. The City of Kankakee, Illinois,
Town and Country Utilities, Inc. and Kankakee Regional Landfill, L.L.C. (PCB 03-35) (Cons.)
(Jan. 9, 2003).
Petitioner WMII makes three main arguments:
1) The petitioner first agues that since there was no administrative findings by the County
Board explaining their reasons to deny the petitioner’s siting application, the mental process
and/or the deliberative process privileges do not apply, and the County Board members should
be compelled to explain the basis for their changes of position.
2) The petitioner next argues that the mental process and/or deliberative process
privileges do not apply when circumstances indicate bad faith or improper behavior in the
decision making process. Petitioner alleges that the mere fact that the County Board voted to
deny the petitioner’s application, without explanation, implies bad faith or improper behavior
sufficient to overcome the mental process and/or deliberative process privileges.
3) Finally, the petitioner argues that post-decisional conversations are not protected by
the mental process and/or deliberative process privileges. Here, WMII asserts that that Michael
Van Mill, the County’s planning director, testified at a deposition that he had discussed the
County Board’s vote on the second application with Culver James Vickery, a County Board
member, after the County Board rendered its decision to deny the application. The County
Board’s attorney objected and the substance of the post-decisional conversations were not
disclosed. WMII contends that it is now entitled to have the question answered.
The Respondent Count Board’s Response In Opposition
Prior to answering WMII’s arguments in turn, the respondent County Board first urges
that the petitioner’s motion to compel should be denied on the grounds that it was untimely. The
respondent cites a number of reasons why allowing discovery would be prejudicial here, where
WMII waited four months to compel answers to discovery questions County Board members
refused to answer at depositions between June 22, 2004 and January 2005.
As to WMII’s specific arguments, in summary the County Board responds that:
1) The respondent contends that the County Board’s final administrative findings in its
written March 17, 2004 decision are sufficient under Section 39.2 of the Illinois (Act), and
therefore prohibits the petitioner from invading the mental process and/or deliberative process of
the County Board.
2) Next, the respondent argues that the mere fact the County Board voted to deny the
petitioner’s 2003 siting application (second application) when it had previously approved the
earlier 2002 application (first application), petitioner has failed to establish either a strong
showing of bad faith or improper behavior that would overcome the mental process and/or
deliberative process privilege recognized by the Board. The respondent also challenges WMII’s
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conclusion that the two applications and records of proceeding were “substantially identical”.
The County Board notes that new and different information, particularly as to criteria 1,3 and 6
was presented by the petitioner to the County Board regarding the 2003 siting application that
was denied in 2004.
3) Finally, the respondent argues that a decision-maker cannot waive the mental process
and or deliberative process privilege, even in a post-decisional context.
See Response, and cases cited at pp.18-21.
Discussion
On appeal of a municipality’s decision to grant or deny a siting application, the Board
generally confines itself to the record developed by the municipality. 415 ILCS 5/40.1 (b)
(2004). However, the Board will hear new evidence relevant to the fundamental fairness of the
proceedings where such evidence lies outside the record. Land and Lakes Co. v. PCB, 319 Ill.
App. 3d 41, 48, 743 N.E. 2d 188, 194 (3d Dist. 2000). The Board has previously held that the
integrity of the decision making process requires that the mental processes of the decision-
makers be safeguarded, and that a strong showing of bad faith or improper behavior is required
before any inquiry into the decision making process can be made. Rochelle Waste Disposal,
L.L.C. v. City Council of the City of Rochelle, Illinois, PCB 03-218 (April 15, 2004). Public
officials, however, should be considered to act without bias. E & E Hauling, Inc. v. PCB, 107 Ill.
2d 33, 42, 481 N.E.2d 664, 668 (1985). The presumption of the impartiality of the actions of a
public official will be overcome only where it is shown by clear and convincing evidence that
the official has an unalterably closed mind in critical matters.
See
A.R.F. Landfill, Inc. v. Lake
County, PCB 87-51 (Oct. 1, 1987).
First, respondent’s argument that the County Board failed to explain its reasons for denial
in its decision fails. The Board and courts have held that “the County Board need only indicate
which of the criteria, in its view, have or have not been met.” E & E Hauling, Inc., 481 N.E.2d
at 609. The County’s March 17, 2004 decision does so, and Section 39.2 of the Act requires no
more.
Second, WMII’s arguments fall far short of a sufficient of showing of bad faith or
improper behavior sufficient to overcome the privilege generally given to a decision-maker’s
thought processes. Here, assuming for the sake of argument that the second application was
“substantially” similar to the first application, as petitioner alleges, the mere fact that members of
the County Board changed position between the first and second proceedings and voted “no” is
insufficient to overcome the presumption of impartiality given to their actions. A change in
position alone does not provide reason to invade the mental process and/or deliberative process
privilege of the County Board members. Sam Dimaggio, Carl Piacenza, Dana Piacenza, Robert
Nikolich, Houstoun M. Sadler, Linda Vukovich and William A. Wegner v. Solid Waste Agency
of Northern Cook County, City of Rolling Meadows, a municipal corporation, and City of
Rolling Meadows City Council, a body politic and corporate, PCB 89-138 (October 27, 1989.
Further, there is reason to believe that the 2002 and 2003 applications were simply not
“substantially” the same: the cover letter regarding the site location application from the
petitioner’s attorney to the County Board reveals that there was indeed additional or new
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information regarding the second application where the letter states that “with the exception of
updated information concerning ordinance requests, criteria 1, 3 and 8 reports, and new
information relating to pre-filing notice, this application is the same as the one filed August 16,
2002.”
See
Resp. Response, ex. B. The respondent also represents that there was additional
information addressing the criteria heard by the County Board at the siting hearing.
Third, petitioner fails to persuade that here the decision-maker’s mental process and/or
deliberative process privilege were waived during post-decisional conversations discussing the
vote. It is noted that the petitioner represents first that the conversation between Mr.Van Mill,
the County’s planning director and County Board Member Vickery did not bear on any decision-
making process and cites to the deposition transcript.
See
Pet. Mot. at 7. Later in the pleading,
petitioner appears to represent that indeed the conversation between Van Mill and Vickery
pertained to the reason why Vickery changed his vote.
See
Pet. Mot. at 10. The hearing officer
was not supplied with the cited transcript.
In any event, and taking petitioner’s later representation as to the nature of the
conversation as true, any such conversation is irrelevant to these proceedings. The Board has
held that the decision-maker cannot waive the mental process and/or deliberative process
privilege. Land and Lakes Company, JMC operations, Inc., and NBD Trust Company of Illinois
as Trustee Under trust No. 2624EG v. Village of Romeoville, PCB 92-25 (June 4, 1992). The
hearing officer finds that for purposes of the mental process and/or deliberative process
privileges, and based on the facts presented here, the privileges are not defeated or waived when
a County Board member discusses his decision with another county employee after the County
Board renders its decision.
Finally, the hearing officer agrees with the County Board’s assessment that petitioner’s
motion could be dismissed due to its untimely filing. It appears that petitioner first became
aware of this mental process and/or deliberative process issue during the deposition of a County
Board member in the summer of 2004. It also appears that petitioner decided not to file its
motion to compel until the last of the County Board member’s deposition was completed in
January 2005. The hearing officer finds no valid reason for petitioner waiting to March 15,
2005, 3 weeks before the hearing, to file its motion. However, due to the time constraints of this
siting appeal, the hearing officer addressed the motion to compel, and did not dismiss it as
untimely, in the interest of “development of a clear, complete, and concise record for timely
transmission to the Board.”
See
35 Ill. Adm. Code 101.610.
For all of these reasons, petitioner WMII’s motion to compel discovery is denied.
IT IS SO ORDERED.
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____________________________________
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917